Swallow v Revenue and Customs & Anor

An appeal from a Pensions Ombudsman determination under section 151(4) of the Pension Schemes Act 1993 is confined to points of law. Where no appeal right existed when a pension decision was made, the decision-maker cannot be criticised for failing to advise of such a right. A later application under a pension rule is a fresh application based on the circumstances and evidence then available, unless the governing rules provide otherwise. A statement that a case may be reviewed following a significant worsening of health does not imply that any later award will operate retrospectively. The court may affirm the Ombudsman’s decision without remitting the matter where the alleged legal error could not affect the outcome.

Mrs Nike Swallow appealed under section 151(4) of the Pension Schemes Act 1993 against a decision of the Pensions Ombudsman dated 20 March 2009. Her employment with HMRC had ended in 1993, and her application for early payment of preserved pension benefits on medical grounds was refused in 1994. A later application, made in 2002 and supported by further medical evidence, succeeded, with payment backdated to that application.

She contended that HMRC had failed to tell her in 1994 of a right of appeal and had misled her by referring to a possible review if her condition worsened. The central questions were whether an appeal right existed in 1994, whether the 1994 correspondence was defective, and whether the Ombudsman’s decision involved an appealable error of law.

1. Appeal dismissed. The court affirmed the Pensions Ombudsman’s decision that HMRC and the Cabinet Office were not at fault.
2. Section 151(4) of the Pension Schemes Act 1993 confined the appeal to points of law. Complaints concerning factual matters did not provide a ground of appeal.
3. Under the 1993 version of the Civil Service Management Code, an appeal existed where a department required or refused an employee’s retirement on medical grounds. No equivalent appeal existed in relation to refusal of early payment of preserved pension benefits under rule 3.14. The 1996 internal dispute-resolution regime did not apply to the 1994 decision.
4. Since no relevant appeal right existed in 1994, HMRC could not be criticised for failing to advise Mrs Swallow of such a right. Nor could she show that an appeal would have altered the position.
5. The reference in the October 1994 letter to reviewing the position after a significant worsening of her medical condition was clear. It did not promise that a later award would be backdated to 1994 or to any earlier date.
6. Although the court had initially considered remitting the matter because the Ombudsman had not expressly addressed the complaint about advice, remittal was unnecessary. The alleged omission could not affect the only legally sustainable conclusion. The court therefore affirmed the Ombudsman’s determination and dismissed the appeal.

1. Pensions Ombudsman: By decision dated 20 March 2009, the Ombudsman did not uphold Mrs Swallow’s complaint concerning the refusal to backdate her ill-health early-retirement pension.
2. High Court (Chancery Division): The appeal on a point of law was dismissed and the Ombudsman’s decision affirmed.